The West Virginia Democratic Party has filed a lawsuit with the state Supreme Court, arguing that a Democrat should be appointed to fill the vacancy in the state Senate created when Sen. Daniel Hall resigned this week to take a lobbying position with the NRA.
Hall was elected to the Senate as a Democrat in 2012, but switched parties to become a Republican just a day after the 2014 election. Hall's switch broke a 17-17 tie in the Senate, giving Republicans the majority for the first time in more than eight decades.
Since he was elected as a Democrat but resigned as a Republican, there has been confusion about which party Gov. Earl Ray Tomblin will choose to fill the seat.
Both state parties have said they will submit a slate of candidates for Tomblin to choose from.
The lawsuit, which names Tomblin, a Democratic governor, and the local Republican executive committee as defendants, argues that state law is ambiguous in determining which party should fill the vacancy.
It asks the Supreme Court to hear the case on an expedited basis and to make a decision before the Legislature gavels into session on Wednesday.
The state code, the lawsuit says, "exists to best preserve the mandate of the voters when a legislative vacancy occurs."
Since voters elected a Democrat, the lawsuit says, Tomblin should be required to appoint a Democrat.
Republicans, unsurprisingly, disagree.
"The law is quite clear," state Republican Party Chair Conrad Lucas said earlier this week. "The Governor shall select a Republican to replace a Republican."
Lucas noted that in 2014 (when Hall wasn't up for reelection), voters from Hall's district elected a Republican for their other Senate seat.
Democratic Party Chair Belinda Biafore emphasized that voters chose a Democrat, so the replacement should be a Democrat.
"When hardworking West Virginians of the 9th District voted, they voted for a Democrat," Biafore said earlier this week. "I believe when Senator Hall changed parties for his own personal motivations, he turned his back on the voting process and the voters."
With the current vacancy, the Senate stands at 17 Republicans and 16 Democrats. A Republican replacement would restore the narrow majority that the party had last session after Hall's switch.
But a Democratic replacement would create a 17-17 tie, throwing the Senate into turmoil with no obvious way forward, and both parties attempting to cajole an opposing senator into switching to their side.
Any tie vote on legislation would result in that bill not moving forward.
Attorney General Patrick Morrisey, a Republican, said earlier this week, in an advisory opinion, that the seat should be filled by a Republican.
Judicial elections in West Virginia are now nonpartisan, but the state Supreme Court is comprised of three Democrats and two Republicans.
Reach David Gutman at david.gutman@wvgazettemail.com, 304-348-5119 or follow @davidlgutman on Twitter.